Standing Senate Committee on Energy, the Environment and Natural Resources (44th Parliament, 1st Session)

THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES

EVIDENCE

OTTAWA, Wednesday, June 1, 2022

The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 6:31 p.m. [ET], and by videoconference, to study Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.

Senator Paul J. Massicotte (Chair) in the chair.

[Translation]

The Chair: Hello, everyone. My name is Paul Massicotte, I am a senator from Quebec, and I am the chair of the committee.

Today we are conducting a hybrid session of the Standing Senate Committee on Energy, the Environment and Natural Resources.

I wish to introduce the members of the committee participating in today’s meeting: Margaret Dawn Anderson from the Northwest Territories; David Arnot from Saskatchewan; Claude Carignan, P.C. from Quebec; Pierre J. Dalphond from Quebec; Rosa Galvez from Quebec; Stan Kutcher from Nova Scotia; Mary Jane McCallum from Manitoba; Julie Miville-Dechêne from Quebec; Dennis Glen Patterson from Nunavut; Judith G. Seidman from Quebec; Karen Sorensen from Alberta; Josée Verner, P.C. from Quebec.

I wish to welcome all of you as well as people across Canada who may be watching.

Today we are continuing our clause-by-clause consideration of Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.

Before we begin, I would like to make members aware that we have officials from two departments on the Zoom call should members have any technical questions to raise as we go through the bill clause by clause. From Environment and Climate Change Canada, we have: John Moffet, Assistant Deputy Minister, Environmental Protection Branch; Laura Farquharson, Executive Director, Legislative Governance, Legislative and Regulatory Affairs, Environmental Stewardship Branch; Jacqueline Gonçalves, Director General, Science and Risk Assessment, Science and Technology Branch; Bryan Stephens, Acting Manager, Legislative Policy, Environmental Protection Branch. Finally, from Health Canada we have Greg Carreau, Director General, Safe Environments Directorate.

I would like to explain the process that we will follow during this meeting. When asking whether a motion shall carry, I will ask members in favour of the motion to raise their hands, followed by a show a thumbs down from those who oppose the motion.

If a senator wishes to move an amendment, I ask you to proceed as follows: If it is not too long, first read out the existing wording of the clause you wish to amend. If several members wish to move an amendment to the same clause, only the first senator moving an amendment would read out the clause under debate. Then read out your amendment and briefly explain the reasons for the amendment. That will be followed by questions and debate, that will be brief, direct, and without repetition. Lastly, we will vote.

Finally, I wish to remind senators that if there is ever any uncertainty as to the results of a hands vote, they may request a roll call vote. That is the most effective route to achieve clear results.

Senators are aware that any tied vote negates the motion in question.

With a bit of ambition, I think we can increase our productivity and pace. We worked well at the last meeting, and we can still improve. If you are uncertain about an amendment or need more time to get organized, you may postpone or suspend the presentation of your amendment.

I will now give the floor to Senator McCallum.

[English]

Senator McCallum: Thank you.

Senators, it was brought to our attention after the last meeting that two of the amendments carried at the last meeting are contradictory and conflicting. Those amendments are RG-S5-3-3-11a and MJM-S5-3-3-13.

In Senator Galvez’s amendment, we voted to remove, “which right may be balanced with relevant factors, including social, economic, health and scientific factors.” In my amendment, we then proceeded to agree — and I will tell you this is where I got mixed up — to keep, “which right may be balanced.” We changed “balanced” to “considered against,” effectively keeping the relevant factors list, which I didn’t realize. I was wondering why it passed so fast.

Do you remember when I said we need to look at four amendments that are almost all the same for me? If you look at amendment 9a, it says, “the consideration of that right in respect of relevant economic factors” — sorry, that’s not the one. It says, “the consideration of that right to respect of relevant factors.” And that is how I wanted my amendment. I didn’t notice there was a comma, and that was an error I made.

These two votes conflicted with each other and need to be fixed. Senator Galvez and I have discussed this, and we propose that we revert to my amendment and vote on it again, ultimately to defeat it. To be clear, the text would now read as follows:

. . . in clause 3, on page 3, lines 11 to 14:

(a) to protect the right of every individual in Canada to a healthy environment, as provided under this act, subject to any reasonable limits.

Therefore, I move that we proceed as described.

The Chair: All agreed?

Hon. Senators: Agreed.

[Translation]

The Chair: Shall Senator McCallum’s amendment carry?

Some Hon. Senators: No.

[English]

The Chair: Thank you very much, senator.

Senators, we will now resume debate on clause 3. I invite Senator Galvez to read out her amendment.

Senator Patterson: Which number is it in the roadmap?

Senator Galvez: 13a. I move:

That Bill S-5 be amended in clause 3, on page 3, by adding the following after line 14:

“(3) The Act is amended by replacing paragraph 2(1)(k) with the following:

(k) endeavour to act expeditiously and diligently to assess whether existing substances or those new to Canada are toxic or capable of becoming toxic and to assess the risk such substances pose to the environment and human life and health while avoiding the use of vertebrate animals in testing and assessment where scientifically possible;”.

Colleagues, the rationale of this amendment is that I’m keeping it exactly as it was but adding the last three lines, “. . . while avoiding the use of vertebrate animals in testing and assessment where scientifically possible;”.

This is to be consistent with previous amendments. It reflects the goal of avoiding unnecessary toxicity testing on animals. It is important not only symbolically, and we will send a clear signal that the goal of eliminating toxicity testing on animals is a priority under CEPA. It will also have practical implications for the interpretation and application of the act given that section 2 guides the interpretation of all other sections of CEPA. For those reasons, I ask you to support this amendment. Thank you.

Senator Kutcher: Mr. Chair, I support the idea behind Senator Galvez’s motion, but I would like to propose a subamendment that, instead of modifying that paragraph, would create a new paragraph that requires the government to encourage the development and timely incorporation of scientifically justified alternative methods and strategies. Can I read out the subamendment? It says:

. . . encourage the development and timely incorporation of scientifically justified alternative methods and strategies in the testing and assessment of substances to replace, reduce or refine the use of vertebrate animals.

Senator Galvez: We don’t —

Senator Kutcher: It would go 2(k.1).

The Chair: Are you sure it’s not 3(k)?

Senator Kutcher: It would add in under subsection 2(k.1).

The Chair: I think it’s paragraph 2(1)(k). Could you be precise? We have the paragraph recommended by Senator Galvez. Could you be very clear: Where would that go in that amendment?

Senator Kutcher: Instead of modifying that paragraph, it would create a new paragraph, 2(1)(k.1).

Senator Galvez: I think this is more complex than my simple addition of the three lines. Could you explain why you want to add complexity?

Senator Kutcher: It would ensure consistency between the preamble statement, which has been similarly modified, and the new duty that recognizes the critical role that development and implementation of non-animal testing plays in the replacement, reduction and refining of vertebrate animal testing. It encourages the move toward replacement.

Senator Miville-Dechêne: French version on top of that.

Senator Kutcher: I will do my Ukrainian English version.

Senator Miville-Dechêne: It replaces “avoiding” with “encouraging.” It’s less strong than Senator Galvez’s.

Senator Kutcher: It also pushes them to do that work.

Senator Miville-Dechêne: But in a timely — over time.

Senator Kutcher: It also adds that push, which the other one doesn’t.

The Chair: Are there any questions or debate?

Senator Dalphond: Senator Galvez proposes to add (k), and this would be (k.1); would that follow (k)?

Senator Kutcher: No. It replaces Senator Galvez’s suggestion.

Senator McCallum: We should have something to read. I can’t make sense of it, so we need copies.

Senator Kutcher: That’s fair. Maybe we could hold that until we get the copies.

Senator Galvez: I think we should vote.

The Chair: We’ll vote on both. Are you prepared to vote?

Senator McCallum: We need to understand his — Do any of you have a copy?

The Chair: The copies will be with us in two minutes.

Senator Sorensen: Just so I understand the process, there is a subamendment on the table, so we will vote on the subamendment. Then do we go back and vote on the amendment? So could it happen here that the subamendment might pass and the amendment might pass?

So if the subamendment passes, then we don’t vote on the — thank you. I was just filling time.

Chantal Cardinal, Clerk of the Committee: You vote on the amendment as amended, as we did yesterday.

Senator McCallum: I have concentrated on Indigenous issues. Are you comfortable with the amendment, and if not, why not?

Senator Galvez: With the subamendment?

Senator McCallum: With the subamendment.

Senator Galvez: I think it complicates the message.

Senator McCallum: So those two read the same?

Senator Galvez: Not necessarily. My amendment is stronger than the wording of Senator Kutcher’s.

Senator McCallum: Okay. Why has it taken from a stronger language —

Senator Kutcher: I see that this is pushing the development, that this encourages — I see this as stronger: encouraging the development and timely incorporation and then as justifying alternative methods.

In certain situations, this one would push the envelope forward.

Senator Galvez: I think there is a problem. The two amendments are directed to modify two different things. Mine is directed to the existing substances. Yours is on the strategy of the testing.

Senator Patterson: I have a point of order, Mr. Chair. I think I got the subamendment. It was read twice and I took some quick notes.

Is there any possibility that could be posted in the chat for those of us who are on Zoom? That would be very helpful. I don’t know if that’s humanly possible, but I know you’re making copies, and I’m wondering if it could be done that way. I think there are three — maybe four — of us on Zoom.

Thank you.

The Chair: All those senators here have received a copy of the amendment. We will try to get a copy to people in our audience.

Senator Seidman: This says (k.1), so is it meant to come after or to substitute for Senator Galvez’s?

Senator Dalphond: My understanding is that (k) will remain as it is in the current act and you will have this (k.1) instead of replacing (k) by the proposed draft of Senator Galvez — if I understand properly.

Senator Seidman: That’s clear. So we don’t have (k) in the current act in front of us, sadly. It’s not in this bill. So according to the subamendment, we’re leaving (k) and adding (k.1), which is what Senator Kutcher just submitted to us.

The Chair: That’s not what you read earlier. Just to clarify, what I hear you’re saying is that with Senator Galvez’s motion, the amendments would stay and yours gets added to that. Is that correct?

Senator Kutcher: No. Senator Galvez’s amendment would not stay. That paragraph 2(1)(k) would remain the same as in the act currently, and my subamendment would follow as (k.1).

The Chair: Is that clear to everyone?

Senator Seidman: I’m just wondering, because it confuses things a bit. Is it properly a subamendment to Senator Galvez’s, or should we try to deal with it separately? I’m not sure. I think we should. I think we need the officials.

The Chair: You want to ask the officials —

Senator Kutcher: — to weigh in on this discussion.

The Chair: I think the discussion is one of semantics. In other words, is it to replace the other one or not? That’s for the proponent — not for us — to decide whether it stands on its own or not. But if you want to ask the experts, I’m okay with that.

Senator Seidman: Senator Kutcher is proposing this as a subamendment to Senator Galvez’s amendment, and I’m just asking: Is it properly a subamendment to Senator Galvez’s amendment or should it be considered as a separate amendment? Because I don’t understand it as a subamendment.

So Senator Kutcher is suggesting we ask the officials what, with their expertise in doing these things, the proper way to approach this is. I just don’t know.

I suppose we could decide. The Chair is quite right. As a committee, we could make that decision. I agree with you. We could just decide whether we want to go forward with it as a subamendment.

The Chair: The bottom line is that if you approve his amendment, it automatically kills the other one. If you refuse the other one, it’s reversed.

Senator Seidman: I guess the committee should decide how they want to proceed.

Senator Miville-Dechêne: Does everyone realize that the original (k) was not talking about animal testing? What we have here in the last three sentences of the amendment is what Senator Galvez added. Do you all realize that? Okay.

So by putting a (k.1), we’re saying it has to be avoided, and then we’re saying how to avoid it. It’s like a recipe: (k.1) can be a recipe on how to avoid it, so there is some kind of link. But I would like to keep Senator Galvez’s amendment’s proposed language: “where scientifically possible.” Is that what we’re doing?

Senator Seidman: No, I think Senator Kutcher should explain what he’s asking us to do here.

The Chair: If you approve his (k.1), it gets accepted as is. It removes the amendment proposed by Senator Galvez. We have to start with that vote, and then we will go to the other vote with the amendment being proposed.

Senator Seidman: What Senator Kutcher says is that we go back to the original (k). We have a bill here that’s amending CEPA, so we don’t have the original (k) in front of us. That’s the problem.

The Chair: Once you approve it, the wording becomes irrelevant.

Senator Seidman: But we don’t know what that wording is. That’s the problem.

Senator Dalphond: To answer Senator Seidman’s question, the current (k) is what Senator Galvez has proposed except the last three lines. It stops at the word “health.” What she is proposing is, “while avoiding the use of vertebrate animals in testing and assessment . . .” — I have the text. She’s adding these three lines, and instead, Senator Kutcher is proposing that we have (k.1), which will achieve the same goal in a different section.

The Chair: If that is the case —

Senator McCallum: Are you going to remove the first part, which was part of the original text? You’re going to remove that?

Senator Seidman: This was Senator Galvez’s amendment to the original text.

Senator McCallum: But it’s only the last three lines, right? So is Senator Kutcher removing all of the part above?

Senator Kutcher: All of the part above stays.

Senator McCallum: Where does it stay? Tell me.

Senator Kutcher: After “health,” and then we go to (k.1), which is the subamendment that you have in front of you.

Senator McCallum: Can you read it out?

The Chair: Read out the full paragraph, including what you propose to add.

Senator Kutcher: I will try to read it out, and you can look as I do it:

. . . endeavour to act expeditiously and diligently to assess whether existing substances or those new to Canada are toxic or capable of becoming toxic and to assess the risk such substances pose to the environment and human life and health . . .

That’s the current (k).

And then to add to that, we have (k.1), which is in front of you:

The Chair: Are we all clear? Let’s go to a vote. All in favour —

Senator Sorensen: I’m sorry, I have a question. So we’re going to vote on Senator Kutcher’s subamendment — I understand that — but I have a question for Senator Galvez.

Senator Galvez, about your wording — “. . . while avoiding the use of vertebrate animals in testing and assessment where scientifically possible . . .” — you have a much more scientific mind than mine. Who gets to decide whether it’s scientifically possible? I’m wondering if that’s not restrictive enough from what you’re trying to do.

Senator Galvez: The wording of “scientifically possible” is the wording from the government. It has been there in many other places. It’s quite standard. The difference is that where I’m saying “avoiding . . . where scientifically possible,” Senator Kutcher is “encouraging.” So this is stronger.

Senator Sorensen: I understand the differentiation. My point is: Who gets to decide? Can’t the person doing the animal testing say, “It’s not really scientifically possible; I’ve really got to do the testing this way because in my mind, in my expertise, in my position, I don’t believe that scientific evidence?”

Senator Galvez: I can tell you that it will depend, because I have also asked this question of the government. Who decides at the end? Who runs this test? Probably the industry, and the industry will give the information to the government, and the government will decide.

Senator McCallum: I have a question. What is it that made you go into these last three lines about animal testing? What is it that the witnesses had said?

Senator Galvez: Thank you. Remember, there was one amendment that I proposed where we would eliminate the word “refine,” but that was kept and we have to “reduce, refine,” and this. That very much opens the door to keep on doing animal testing when the government says that it’s impossible to do. So another way of limiting that is by saying to avoid it when there are other scientific options to use. If I want to go a little bit further, I will repeat what I said the last time that science is ahead of us. Technology comes second. Third is our policies. It took 22 years to change CEPA. So we are thinking that things will change. Actually, they are already changing. We are already using genomics — you know, genomes, cells — instead of organisms. That’s the way we are going. I think we have to be visionary and see that because this bill won’t be modified in the next 22 years; we need to be progressive.

The Chair: Thank you.

Senator McCallum: We also talked about the cruelty that animals had to suffer during the testing. That’s what I remember the most about it.

Senator Galvez: Absolutely, yes.

Senator McCallum: Okay.

The Chair: I think we have heard enough and we understand what we are voting on. If we can vote on Senator Kutcher’s subamendment, all in favour with Senator Kutcher’s subamendment, raise your hands.

All against, thumbs down.

Let’s do it again. Keep your hand raised, those in favour of the subamendment proposed by Senator Kutcher.

All those against, thumbs down, please.

It’s not adopted. Then we will go to the —

Senator Kutcher: Point of order: Senator Gold voted.

Senator Gold: I’m now confused. What was the call for the vote? I thought that [Technical difficulties].

The Chair: We can do a roll call if you want.

Senator Seidman: I think you need to do a roll call.

The Chair: We will pursue a roll call. Our clerk will organize it. Go ahead.

[Translation]

Ms. Cardinal: The Honourable Senator Massicotte.

The Chair: Abstain.

Ms. Cardinal: The Honourable Senator Anderson.

Senator Anderson: Opposed.

Ms. Cardinal: The Honourable Senator Dalphond.

Senator Dalphond: Yes.

Ms. Cardinal: The Honourable Senator Galvez.

Senator Galvez: Opposed.

Ms. Cardinal: The Honourable Senator Gold.

Senator Gold: In favour.

Ms. Cardinal: The Honourable Senator Kutcher.

Senator Kutcher: In favour.

Ms. Cardinal: The Honourable Senator McCallum.

Senator McCallum: Opposed.

Ms. Cardinal: The Honourable Senator Miville-Dechêne.

Senator Miville-Dechêne: Opposed.

Ms. Cardinal: The Honourable Senator Patterson.

Senator Patterson: In favour.

Ms. Cardinal: The Honourable Senator Seidman.

Senator Seidman: Yes, in favour.

Ms. Cardinal: The Honourable Senator Sorensen.

Senator Sorensen: In favour.

Ms. Cardinal: The Honourable Senator Verner.

Senator Verner: Opposed.

Ms. Cardinal: Abstention: 1. In favour: 6. Opposed: 5.

The Chair: Carried.

[English]

Is it your pleasure, honourable senators, to adopt the motion as amended? Agreed? Carried.

Will clause 3, as amended, carry? All in favour? Carried.

Senators, we will resume debate on clause 5. I invite Senator Miville-Dechêne to read out her amendment.

Senator Miville-Dechêne: I move:

That Bill S-5 be amended in clause 5, on page 4,

(a) by replacing line 5 with the following:

“— and the principle of non-regression; and”;

(b) by replacing lines 8 to 11 with the following:

“ment referred to in paragraph 2(1)(a.2).”.

Okay, this is hard to understand, so I will take my chart and show you what I’m doing. We are talking here about clause 5.1(2), and I’m proposing to get rid of, in English and in French, the last sentence of it. The sentence in question is (c): “. . . the balancing of that right with relevant factors, including social, economic, health and scientific factors.”

To be clear, we’re talking here about the right to a healthy environment, and we are in the part of the bill that talks about implementation. In this case, because we’re talking about implementation, I’m saying that the right to a healthy environment should not be qualified.

Why am I saying that? I will be consistent with what I said at the beginning of this study. In our law and in international law, rights are not qualified in that manner and they are qualified afterwards by courts. So in this case, we already made a compromise in the law itself by saying that this right would be subject to reasonable limitation. We refused the “unqualified right,” and we added “reasonable limitation.” At this point, since we are in implementation, we should not repeat that this right has limits.

If we do that, we limit ourselves and this right even before anything happens, and I don’t think it’s the way to go.

The Chair: Are there any questions or comments?

Senator Kutcher: I have a subamendment —

Senator McCallum: Are you proposing to remove in the principle of non-regression?

Senator Miville-Dechêne: No. I mean (c). On page 4, line 9, the part starting with “The balancing of that right with relevant factors, including social, economic, health and scientific factors,” and in French —

Senator McCallum: Okay.

Senator Miville-Dechêne: You may not need the French part. I’m only proposing to get rid of “balancing.” We had a debate earlier.

Senator McCallum: Yes.

Senator Miville-Dechêne: If you put “balancing,” it means that it’s not a right without qualification. It would have to be balanced. It reduces this right.

Senator McCallum: Okay.

Senator Patterson: I would like to ask the officials — I presume it would be Mr. Moffet — about the phrase “referring to social, economic, health and scientific factors” and whether there was a source for that phrasing based on CEPA or the broader legislative context. What was the government’s rationale for including those words, please? Thank you.

John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada: We included those words in two places, one of which has now been removed and replaced with the concept of reasonable limits. Those words were echoed here. I’ll make two points about that.

The first point is that the reason for enumerating or listing those concepts was to be clear that there are a range of factors that may limit the implication of the right on a case-by-case basis. Social, economic, health and scientific considerations are ones that we account for routinely in implementing CEPA and in making all environmental and health protection decisions.

The second point is: So why are they included here? They are included here not to reinforce the point that there are specific limitations. They are included here to require that the implementation framework that is to be developed must explain how the government intends to account for those factors.

What we have now is no listing of those factors, which the committee has decided on, but there is still a reference to “subject to reasonable limits.” What we are trying to do here is say, “Okay, you now have to write an implementation framework.” Among other things, an implementation framework needs to tell the world how you’re going to account for that broad concept.

Again, it’s not to doubly reinforce these limits; it’s to explain in more detail than is in the legislation how the government will account for those factors. Removing this won’t change the authority of the government to account for these factors, but it may limit our ability to write a framework that explains publicly how we will do it.

Senator Kutcher: Thank you to Senator Miville-Dechêne for her amendment. I have a subamendment to your amendment, senator. Could I bring that forward at this point? We had mentioned earlier the other day adding the issue of intergenerational equity, which was an important one. That would go in 2(a), which would read, “ . . . the principle of non-regression and the principle of intergenerational equity,” so it would strengthen that component and be consistent with what I had said earlier.

I would add another to (c). I would change the current (c) to this (c), using the language that we had already used earlier in the bill to align this subsection with the previous language of the bill, and what I would propose here is that (c) would become “ . . . the reasonable limits to which that right is subject.” It’s the same language that we used earlier in the bill. It’s consistent with what’s already in the bill. It aligns this section with the rest of the bill.

It’s slightly different. We had earlier discussions, and I was able to bring this amendment more into line with what some other senators around the table felt was moving in that direction.

The Chair: If I’m correct, you’re amending Senator Miville-Dechêne’s amendment?

Senator Kutcher: I am. I added the principle of intergenerational equity in (a), and I brought “reasonable limits” to (c). Senator Miville-Dechêne took out (c), so —

The Chair: I’ve got some copies here, but am I correct that we have not received a copy of those amendments?

Senator Kutcher: I was going to move an amendment, but there were differences to how people moved.

The Chair: Have we received a copy in writing of your amendment?

Senator Kutcher: This is a subamendment.

The Chair: I appreciate that.

Senator Kutcher: I’m just saying it right now. Add “ . . . the reasonable limits to which that right is subject.”

The Chair: Do you also have a copy in French for us?

Senator Seidman: It is slightly changed, but at least we have something. Senator Kutcher sent us an amendment which he’s now turning into a subamendment, slightly changed.

The Chair: I think it’s an amendment, not a subamendment.

Senator Kutcher: No, no. I’m sub-amending Senator Miville-Dechêne’s amendment.

The Chair: So you’re accepting her amendment? But you’re making some —

Senator Kutcher: No, I’m sub-amending hers.

Senator Galvez: It’s the same thing that happened before. It’s the same thing.

Senator Dalphond: Senator Kutcher is proposing to amend paragraph (a). Nobody else is proposing to amend paragraph (a). Can we deal with this amendment and then move to (c)?

For (c), there are two options. There is Senator Miville-Dechêne’s option of removing (c) or Senator Kutcher’s option of replacing (c).

Senator Miville-Dechêne: We will have more consensus on (a) on the generations than on (c). Could we do that in terms of procedure?

Senator Kutcher: I don’t know. I’m fine with it.

The Chair: I’m not sure. This committee can do what it wants, but to be in proper order, I suspect we must stand on it until you get us a copy in French and English and we know exactly what you’re proposing. You say it’s a subamendment, but it kills the amendment. Let’s get the document in English and French in both copies and proceed. We will come back here.

Senator Kutcher, did you not also have another amendment —

Senator Kutcher: I will stand on all of section 5, because Senator Galvez also has something on it.

The Chair: We also have Senator McCallum.

Senator McCallum: It will depend on what we vote on.

The Chair: Do you also want to stand it?

Senator McCallum: Yes.

The Chair: We’re on S5-5-4-11.

Senator Galvez: I can go with mine.

The Chair: We are on RG-S5-5-4-11.

Senator Seidman: We’re leaving everything else for now?

The Chair: Yes, we stood on the others. Senator Galvez, the floor is yours.

Senator Galvez: I move:

That Bill S-5 be amended in clause 5, on page 4,

(a) by replacing line 8 with the following:

“ment referred to in paragraph 2(1)(a.2);”;

(b) by replacing line 11 with the following:

“tors; and

(d) the legal mechanisms by which the right to a healthy environment will be implemented and made enforceable.”.

This amendment adds a new item, which is: “(d), the legal mechanisms by which the right to a healthy environment will be implemented and made enforceable.” I tried to give power to implement this framework.

My rationale is as follows: Right now as it stands, and following on the previous discussion, the right to a healthy environment is neither defined nor enforceable. Bill S-5 instructs the minister to develop an implementation framework to define the principles to be considered, the research to support the protection of the right and the factors by which the right must be balanced, but it does not instruct the minister to provide a legal mechanism allowing Canadians to actually benefit from this eventual right. Without a legal mechanism to ensure the right can be guaranteed, the right to a healthy environment becomes meaningless.

So this amendment doesn’t create the legal mechanism; it asks the government to work on that.

Those are my reasons.

Maybe you will remember that several witnesses were very concerned about this issue — that the right to a healthy environment was just lying there but with no meaning to be implemented or made enforceable. That’s why I’m adding this amendment.

The Chair: Thank you.

Senator Kutcher: I would propose a subamendment to that to read instead of (b), as Senator Galvez has proposed, (d) would be “mechanisms to support the protection of that right,” which is a wider construct.

The Chair: So it removes her (d) completely?

Senator Kutcher: It removes her (d) and puts instead “mechanisms to support the protection of that right,” which is a wider construct and allows very different kinds of mechanisms to support the —

The Chair: Did we receive a copy of your proposed amendment in French and English?

Senator Kutcher: It’s not an amendment; it’s a subamendment.

They could be legal or other kinds of mechanisms; it could be regulatory mechanisms. It could be other kinds of mechanisms.

The Chair: I think the concept is pretty simple.

Senator Kutcher: It’s a wider concept. It includes legal but adds regulatory and other concepts to it.

Ms. Cardinal: We will send it by email to those who are virtual.

The Chair: Can we vote on it?

Ms. Cardinal: I would wait until everybody gets a copy.

Senator McCallum: — term enforceable because the First Nations have worried about it because the laws are not enforceable on First Nations’ lands and where First Nations live.

Does your amendment have any enforceability in it, and if it does, could you explain it?

Senator Kutcher: The enforcement of the act is in a different section of the act; the enforcement mechanisms of the act are not in the implementation framework. This is talking about what the implementation framework should address. It’s not the enforcement of the act; that’s in a different part of the act.

What I have suggested is that the legal mechanisms be replaced by “mechanisms,” which could be legal, regulatory and other mechanisms that will uphold the right.

Senator McCallum: Okay, and then the enforcement comes later?

Senator Kutcher: The enforcement is elsewhere, yes.

The Chair: We did receive a copy. We will send it shortly — in seconds, hopefully. A copy will be sent to Senator Patterson and other people who are online.

If senators want, maybe for the sake of efficiency, we should just stand on it.

Senator Galvez: No, we cannot stand on everything.

I would like to make a comment and leave it on the record. So far these subamendments that Senator Kutcher is bringing go in the same line, but they are weaker and they are diluting the effort.

At the end, probably, the government will win, we will vote and this will continue in this fashion. But I want to express that we are not going to touch this bill in the next 20 years, and that we should try to be as strong as possible, and as specific and as descriptive as possible. By diluting it, we are not attaining that.

I just wanted to put that on the record.

The Chair: Now you can take a look at the proposed subamendments. I think it is quite simple, but it’s important you see it in writing because we’re going to vote on it.

Senator Dalphond: The proposal does not exclude that it could be a legal mechanism; it could be a regulatory mechanism or any kind of mechanism —

Senator Kutcher: Exactly.

Senator Dalphond: — including a legal mechanism.

Senator Kutcher: Yes.

I disagree with Senator Galvez. It doesn’t weaken it. It’s making it wider. It also uses —

The Chair: I think we are all repeating ourselves. I think we understand exactly what it says. Therefore, let’s go to the vote on the subamendment. All those in favour of the subamendment, please raise your hands.

Ms. Cardinal: Seven for.

The Chair: All those against, thumbs down.

Ms. Cardinal: Four against.

The Chair: It is carried. That’s the subamendment.

Ms. Cardinal: Yes.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment, as amended? All in favour, raise your hand. Thank you. Anybody against? Passed.

Ms. Cardinal: It’s amended. He amended her amendment.

The Chair: Okay. Let’s proceed with Senator Patterson. I think he also had a proposed amendment to this clause.

Senator Patterson: Yes, I have an amendment that would create a new clause 5.1 on page 4. The amendment would be as follows:

That Bill S-5 be amended on page 4 by adding the following after line 19:

“5.1 (1) Subsection 13(1) of the Act is amended by striking out “and” at the end of paragraph (b) and by adding the following after paragraph (c):

(d) any proposed, completed or ongoing activities or actions for each substance on the Domestic Substances List; and

(e) any proposed or implemented preventive or control measures for each substance on the Domestic Substances List.

(2) Subsection 13(2) of the Act is replaced by the following:

(2) The Minister may determine the form of the Environmental Registry, how it is to be kept and how access to it is to be provided, so long as the registry is maintained in the form of a searchable electronic database.”.

May I speak to the amendment, Mr. Chair?

The Chair: Senator Patterson, your amendment closely resembles the amendment of Senator Galvez. Before we have further debate, I think we should pause and you should have a discussion together and say which one of the two we should vote on or consider. Basically, I think you’re at the same spot. How would you like to proceed?

Senator Galvez: Thank you so much, Senator Patterson. I like your amendment and I’m ready to support it. I have a couple of things, though. I think I could sub-amend yours, following the example of my colleagues. I am a fast learner.

The Chair: Senator Patterson, is that okay?

Senator Patterson: I have an open mind, yes.

Senator Galvez: If you compare your amendment with my amendment, I added “international instrument to which Canada is a signatory that applies in respect of that substance.” That is just to add that Canada belongs to many other international organizations and, for that reason, we have to respect that. Actually, you raised this issue during the course of the discussions.

The second addition is to add that “the registry is maintained in the form of a publicly accessible and searchable electronic database.” I hope you will accept my subamendment.

Senator Patterson: We’re on the same wavelength, Senator Galvez.

Senator Galvez: Perfect.

Senator Patterson: I’m open to her refinements and maybe improvements to my amendment. I don’t know how we’d do that procedurally, though, Mr. Chair.

The Chair: I think we have two solutions. We have received proposed amendments from both you and Senator Galvez. If you think hers is more complete, then we should deal with her amendment. If you think yours is more complete, then you have to convince Senator Galvez which one to deal with.

Are you proposing to go with her amendment, which is No. 21 in our package? Or will we go with No. 20, which is Senator Patterson’s amendment? Senator Patterson, are you comfortable in supporting Senator Galvez’s proposed amendment, which is RG-S5-5.1-4-19, No. 21 in our book?

Senator Patterson: I’m just looking at it. It includes everything that was in my amendment with the addition of the international aspect and the reference to “publicly searchable.” Otherwise, it includes everything in my amendment. Do I understand that correctly, Senator Galvez?

Senator Galvez: Yes.

Senator Patterson: I’m a reasonable guy. That sounds good to me. However, I would like to explain the rationale for the two amendments that we’re looking at, Mr. Chair, for the record. May I give the background here? It sounds like there is a positive appetite in the committee, but I would like to justify the amendment with a brief explanation. May I do so?

The Chair: I have no problem with that, but, Senator Patterson, I have learned in life that sometimes when you have more information, you complicate things more than going home with a trophy. I think we’re ready to vote on it and there is a positive feeling — unless you want to sell that away.

Senator Patterson: I won’t take any chances. I will go with calling the question.

The Chair: We need someone to read the motion completely.

Senator Galvez: I move:

That Bill S-5 be amended on page 4 by adding the following after line 19:

“5.1 (1) Subsection 13(1) of the Act is amended by striking out “and” at the end of paragraph (b), by adding "and" at the end of paragraph (c), and by adding the following after that paragraph:

(d) for each substance on the Domestic Substances List,

(i) every action, process, decision, assessment, request or activity - however called – that is carried out in relation to the substance under any provision of this Act, whether it has occurred, is in progress, or is proposed; and

(ii) every international instrument to which Canada is a signatory that applies in respect of that substance.

(2) Subsection 13(2) of the Act is replaced by the following:

(2) The Minister may determine the form of the Environmental Registry and how it is to be kept, so long as the registry is maintained in the form of a publicly-accessible and searchable electronic database.”.

Senator Dalphond: Would it be better to say that your beginning is 5.2 instead of 5.1? We already have a 5.1 on the previous page, page 3, which is the framework.

Ms. Cardinal: I think the Law Clerk’s office can —

Senator Dalphond: It’s coming, so it will be 5.2.

Senator Galvez: We will have a motion, yes.

The Chair: If there are no other comments, we will go to a vote.

Is it your pleasure, honourable senators, to adopt the motion in amendment? Those in favour, raise your hands; those against, thumbs down. So carried.

We will stand clause 5 and come back to it later.

Shall clause 6 carry? I’m not aware of any amendments. Therefore, can we go to a vote? All those in favour of clause 6, raise your hands.

Hon. Senators: Agreed.

The Chair: Against? So carried.

Shall clause 7 carry? I think, Senator Patterson, you have an amendment.

Senator Patterson: Yes, Mr. Chair.

I move:

That Bill S-5 be amended in clause 7, on page 4, by adding the following after line 33:

“(3.2) The Ministers shall conduct research or studies relating to radiofrequency electromagnetic radiation, methods related to its detection, methods to determine its actual or likely short-term or long-term effects on the environment and human health, and preventive, control and abatement measures to deal with it — as well as alternatives to its use — to protect the environment and human health.”.

May I speak to the amendment, Mr. Chair?

The Chair: Please do.

Senator Patterson: Thank you. This amendment uses the language proposed by several groups in their briefs and in the white paper by Prevent Cancer Now and Canadians for Safe Technology.

I remind committees members of Dr. Sears’ intervention on this topic where she told us that:

Safety Code 6 applies to human exposures, and it’s based upon six-minute exposure times. There have been concerns that Safety Code 6 may not be protective of human health, but I’m putting that aside right now because when we looked at the regulatory framework for birds, bees and various insects, every kind of biota apart from humans is being affected by the radiofrequency radiation. There is no assessment, and this was confirmed by Environment and Climate Change Canada. They’re not doing any research on this. So, we provided the Senate a white paper specifically on this issue.

There are regulations. There is the Radiation Emitting Devices Act. That act and the regulations under it actually refer to CEPA and the Species at Risk Act and other environmental legislation, which is all completely silent on this issue. There is this recognition that there should be some kind of environmental protection for non-human species, but it’s an empty basket. There is nothing there at all.

In 2018, The Lancet Planetary Health published research showing that the ambient exposures — the peak exposures, which are kind of like the bullets out of the gun, so they are important — have gone up by a factor of a quintillion — that’s a one with 18 zeros after it. It’s unimaginable how much this radiation has increased, and the radiation can also work along with chemicals. It can magnify the effects of chemical toxicities. So while we are seeing rapidly decreasing populations of insects, birds and other small wildlife, and we’re ascribing that to insecticides and chemicals, it’s quite probable that radiofrequency radiation is an important contributor to what we’re actually seeing in terms of biodiversity loss.

It’s a very simple proposal that this shall be studied by the relevant ministers. Thank you.

Senator Kutcher: I want to thank Senator Patterson for raising this really important issue, but I’m afraid that it’s out of scope for the bill. RFEMR is an important issue, but it doesn’t qualify as a substance under the act. The act defines a substance as “. . . any distinguishable kind of organic or inorganic matter . . . .” But radiation is not matter; it’s energy given off by matter in the form of rays or high-speed particles. Also, Health Canada plays an important role in the regulatory framework for RFEMR, and maybe I can call on the officials to help us with this issue here.

Senator McCallum: I am very concerned about this. The group did go to Health Canada but they did not receive much help, and I think that’s why they started coming to the senators. If it’s outside the scope — it’s simply not there because it isn’t organic and inorganic matter. What is it classified under? Energy.

The Chair: If I can ask, do you share the opinion of Senator Kutcher relative to it being out of scope?

Senator Patterson: Mr. Chair, I brought my amendments to the law clerk, and these amendments were vetted by the law clerk and determined not be out of scope. I have an amendment that would add radiofrequency electromagnetic radiation to clause 9 on page 5, which would include that in the scope of the bill.

Look, we found out that Health Canada does not have an adequate way of dealing with this. Their Safety Code 6 is now completely inappropriate in this electromagnetic world we live in with the ubiquitous presence of cellphones and cellphone towers. I would urge the committee to not be cautious here and declare our agreement from the numerous witnesses that have spoken on this very compelling issue.

We should recommend that it be included in the bill, and if the government is going to reject that amendment and say it’s out of scope, let them do that, rather than us being very anal at this point. I would suggest that if we agree this is important, let’s put it in. These out-of-scope questions are to be dealt with by the clerk or the Speaker, and I think we shouldn’t pontificate on that at our committee, especially when our independent law clerk has recommended these amendments are in scope.

Senator Gold: Thank you. Senator Kutcher asked the officials to comment and to provide some explanation, and I think that before we decide that we’re going to proceed or punt this issue to others, I think it’s appropriate to hear from the officials as to how this does or does not fit into this act. It’s irresponsible for us not to proceed as proper legislators. That’s how we should proceed.

[Translation]

The Chair: Mr. Moffet, did you have something to say?

[English]

Mr. Moffet: Could I suggest, senator, that we turn to our colleagues from Health Canada who can speak to the various legislation that does apply?

Greg Carreau, Director General, Safe Environments Directorate, Health Canada: Thank you very much. Indeed, as the senator points out, there are two pieces of federal legislation that govern this issue, notably the Radiocommunication Act that is under the purview of Innovation, Science and Economic Development Canada, and also Health Canada’s Radiation Emitting Devices Act. Through both of those pieces of federal legislation, the government does address the potential impacts as a result of both wireless communication equipment, such as cellphones, towers and smart meters, as well as radiation-emitting products. Through those pieces of legislation, Health Canada continues to monitor new science and studies and addresses any emerging risks that are identified. Thank you.

Senator Seidman: Look at the definition of substance in the bill. It’s very clearly defined, as Senator Kutcher told us. I think we should pay attention to what the official just told us and look at the definition of substance as it’s defined in the bill. It’s very clear. It means any distinguishable kind of organic or inorganic matter whether animate or inanimate, and then it lists them.

I just don’t see how electromagnetic fields fall under the heading of substance as defined in the bill. I’m just paying particular attention, as much as I empathize with what Senator Patterson put forward. I know there are issues about electromagnetic fields and their impact, and this issue has been in the scientific literature for quite a number of years now. There are a lot of theories, but I don’t think it belongs in this piece of legislation.

Senator McCallum: I think that because this is an ongoing issue and they have not gotten anywhere with it that we are aware that they need support when they’re dealing with Health Canada. Could we put this as an observation? We say we’re concerned about it, but there are two bills.

Senator Patterson: We’re not on observations now. We’re on an amendment I proposed to the bill.

The Chair: If that’s the case, let’s proceed to a vote on Senator Patterson’s amendment.

Is it your pleasure, honourable senators, to adopt the motion in amendment? All in favour, raise your hand. All those against, thumbs down.

And it is defeated.

Shall clause 7 carry? All in favour? Agreed.

Shall clause 8 carry? And we have an amendment from Senator McCallum here.

Senator McCallum: I move:

That Bill S-5 be amended in clause 8, on page 5, by replacing lines 5 and 6 with the following:

“ferred to in paragraph (1)(a) shall relate to the vulnerable populations that have experienced geographic and environmental racism.”.

So I have suggested “shall relate” instead of “may relate” in reference to vulnerable populations and their experience with geographic and environmental racism.

It’s important to raise those two because that is what has occurred for the First Nations, Inuit and Métis and the lands they live on. And the reasoning for this is that we have lived with racism for so long and it has been legislated through the Indian Act that has led to the vulnerability of First Nations, Métis and Inuit to allow industry to be able to continue to dispossess them of their land today.

It’s important to know the context. First Nations were removed from their practice of nomadic lifestyles and placed in segregated reserves. That’s the beginning of the geographic racism. They then required a pass to leave the reserve, and if caught off-reserve without the pass it would have allowed the Indian agent to place them in jail. This prevented many from practising their livelihoods of hunting and trapping, and it has been difficult to disentangle the intergenerational effects of this oppression. First Nations were placed on lands that were believed to have no value. Geographic racism started then and isolated the First Nations from continuing and being part of the change in the economy of Canada.

When I went to Saskatoon, in the city, the lawyer was giving me a tour and when we were crossing a railway, he asked, “Do you notice there are no barriers that come down?” He said this is geographic racism within the city because it occurs in areas where the elite live. That was how I started to understand geographic racism.

First Nations communities across this country lie on land that is full of natural resources — water, land, minerals and lumber. The submission by the Assembly of First Nations states:

First Nations experience environmental racism throughout the country, resulting in disproportionate exposure to toxic substances and hazardous activities.

This was a quote from the House of Commons in 2017:

Children living in communities or on reserve are disproportionately impacted by unregulated chemicals (e.g., the lack of regulation on use of pesticides and herbicides on and around reserves). First Nations experience higher rates of exposure to harmful substances and increased rates and risks for cancer.

That’s from StatCan.

As noted by the United Nations Special Rapporteur on toxics and human rights, ”The invisible violence inflicted by toxics is an insidious burden disproportionately borne by Indigenous peoples in Canada...”

In their submission to the Energy Committee, AFN states: ”One of the largest concerns with Bill S-5 is that it fails to address the regulatory gap . . .” And I have said this with another one where they:

. . . fall into a “jurisdictional quagmire,” where reserves fall between the cracks of federal and provincial jurisdiction, posing a risk for unregulated exposures. This regulatory gap is widely acknowledged within the federal government and has been identified as a significant issue many times over the last 15 years. . . . CEPA 1999 has failed to provide proper protection of First Nations environment.

The issue of the regulatory gap has been consistently identified as one of the largest barriers preventing First Nations from receiving fair environmental and human health protection. This regulatory gap persisted under CEPA and has prevented the fulfillment of environmental and social justice for First Nations peoples, including the fulfillment of Aboriginal and Treaty Rights. The risk of these injustices continuing under Bill S-5 remains high.

Their recommendation was to:

Expand and improve the language related to “geographically targeted areas” to reflect the intent that those areas should be identified, and that best efforts will be made to reduce pollution expeditiously and significantly in ’sacrifice zones’ to levels that meet international standards . . .

So that is the reasoning behind that.

Senator Sorensen: I’m not going to make a subamendment. I will try something different. You can tell me if this isn’t allowed. Senator McCallum, can I suggest a friendly amendment — is that a term we use here? That would be a term I would use.

The Chair: I’m not sure where you’re going, but go ahead.

Senator Sorensen: We don’t use friendlies, but what if she agrees to my language?

Ms. Cardinal: It’s still a subamendment.

Senator Sorensen: A friendly amendment: My concern is with the way you worded it. I agree with the “. . . shall relate to the vulnerable populations that have experienced . . . . “ To me, that limits the number of vulnerable populations, so I would add to it to say, “vulnerable populations including those that have experienced geographic and environmental racism.” I think this is an interesting way to express that but not to ignore other vulnerable populations.

Senator McCallum: I agree with that.

Senator Sorensen: Look, she accepted my friendly.

Senator Kutcher: Chair, what do we do here? I can’t subamend her subamendment.

The Chair: We have not voted yet. We are still at the debate stage. Are there any other questions?

Senator Sorensen: You can subamend my friendly.

Senator Kutcher: I have a subamendment to Senator McCallum’s original amendment, but I’m not sure how to deal with the friendly.

The Chair: I want to clarify: A subamendment means that you accept the amendment and you are making changes to the amendment. But in your case, Senator Kutcher, it looks like a deadly submarine; every time the subamendment wins it eliminates the other one. That’s not what a subamendment looks like. A subamendment means you accept the amendment and make an addition to it. But go ahead.

Senator Kutcher: Accepting the spirit and perspective of Senator McCallum’s approach, the concern — and we could ask the officials for their thoughts about it — was that only focusing on vulnerable populations may limit the necessity to look at all populations. That was one concern.

And the fact is that geographic and environmental racism, while very important, are not defined in the bill so it’s hard to understand how they would be dealt with in this part of the bill. So the suggestion was “may relate to vulnerable populations that have experienced adverse health effects from exposure to substances.”

That suggestion was so that would capture that without having the challenges of defining environmental and geographic racism.

The Chair: That’s your subamendment? Could you circulate it, obviously in English and French?

Senator Galvez: Chair, point of order.

The Chair: Go ahead.

Senator Galvez: We had an amendment that was subamended, and we need to solve that issue before we go into the subamendment; otherwise, it’s going to become a nightmare.

Senator Seidman: I agree with what Senator Galvez said. We’re getting way too complicated in terms of subamendments.

But I also want to go back to definitions, because I think it’s important. First of all, changing the verb from “may relate” to “shall relate” is a huge change. It becomes extremely restrictive when you do that. So now we’re restricting it to a particular kind of population. We’re restricting it to that by saying “shall” as opposed to “may,” and I think that’s dangerous.

I also think you should look again at the definition in the bill of “vulnerable population.” It states that:

vulnerable population means a group of individuals within the Canadian population who, due to greater susceptibility or greater exposure, may be at an increased risk of experiencing adverse health effects from exposure to substances. . . .

So be clear about what the bill says and how the bill defines language. Then it makes our job a lot easier if we do that.

I’m sorry to say that I think this complicates things. The way it’s defined in the bill now certainly includes what you’re talking about — there’s no question, Senator McCallum — but I think what you’re doing is excluding everything else with the way you phrased this. I think it’s a great learning experience for all of us to listen to what you’re saying, because I don’t think any of us would have ever thought about this, but I think that we are excluding too much by writing this kind of an amendment.

Senator McCallum: Okay, can I respond to that?

The Chair: Go ahead.

Senator McCallum: The reason I bring this up is that I wanted it on the record that toxicity has actually increased around First Nations communities. The bills haven’t protected them, and I actually have such little trust of the government that they will do anything now. Sometimes I use this as education for people to understand where we live and what is happening in the communities. I am very glad that it has come out. I understand what you are saying.

When you read out the definition, it does have that, but I need to say that environmental racism and geographic racism — the language does exist. It’s in the United States. They have done a lot of research.

What I’m raising here and why I continue to move the amendments is to bring forward and have it on record that we want change, and we want the government to work with First Nations.

Because of that, I will withdraw the amendment, considering when she talked about what “vulnerable” defined.

The Chair: Just to clarify, are you withdrawing your amendment?

Senator McCallum: I will withdraw my amendment.

The Chair: Senator Kutcher, you’re okay with that?

Senator Kutcher: I want to make sure that we have captured here — and I only have 6,000 pieces of paper, and I need 6,001 — that it —

The Chair: If you want, you may choose to bring the matter to the Senate at third reading.

Senator Galvez: She has withdrawn her amendment.

Ms. Cardinal: You can move it as an amendment now.

The Chair: But I gather you want to make an amendment to a big nothing, right?

Senator Kutcher: I will let this go and maybe I’ll work at amending it at third reading.

The Chair: Good. Thank you.

Shall clause 8 carry?

Hon. Senators: Yes.

The Chair: Carried.

Shall clause 9 carry? We have some amendments there. We have three from Senator McCallum and one from Senator Patterson.

Ms. Cardinal: They were shared just before the meeting, so they are the loose ones that you received. They are not on the roadmap because we only got them before the meeting.

Senator McCallum: Okay, I think I’ve lost my — am I first?

The Chair: You have three of them; Senator Patterson has one. Do you want him to go ahead of you?

Senator McCallum: Yes, please.

The Chair: Senator Patterson, you can proceed.

Senator Patterson: Thank you, Mr. Chair.

I’m concerned about radiofrequency and electromagnetic radiation, as you all know, and witnesses confirmed that.

I got the impression that members of the committee were also concerned about this issue, so I move:

That Bill S-5 be amended in clause 9, on page 5, by adding the following after line 19:

“(k.2) radiofrequency electromagnetic radiation;”.

To explain, this follows on the heels of my previous attempted amendment on radiofrequency waves, as a result of interventions both as witnesses and through briefs from organizations such as Canadians For Safe Technology, Canadian Educators For Safe Technology and Electromagnetic Pollution Illnesses Canada Foundation.

I had no idea about the issue of radiofrequency waves and their negative effects not only on our health but biodiversity in Canada. I was particularly struck by Dr. Meg Sears, who linked radiofrequency radiation to higher occurrences of cancer.

So this amendment would expressly include radiofrequency electromagnetic radiation, or RFEMR, under section 46(1) of the act as subparagraph (k.2). Section 46 occurs under the heading “information gathering” and currently states:

The Minister may, for the purpose of conducting research, creating an inventory of data, formulating objectives and codes of practice, issuing guidelines or assessing or reporting on the state of the environment, publish in the Canada Gazette and in any other manner that the Minister considers appropriate a notice requiring any person described in the notice to provide the Minister with any information that may be in the possession of that person or to which the person may reasonably be expected to have access, including information regarding the following:

The goal is simply to add “radiofrequency electromagnetic radiation” to that list of information that should be gathered and readily available. Thank you.

The Chair: Senator Patterson, I just want to clarify this: Given that your earlier amendment, S5-7-4-33, was rejected, the consequence of that is it also immediately rejects your S5-9-5-19 because of the pertinence, if you wish, and because we voted against it in your number two. So there’s a consequence of that earlier rejection.

So as a consequence, you have no amendment to propose. That’s the bottom line.

Senator Gold: Thank you, chair. I was going to make a different argument against the amendment, but I defer to your decision.

Senator Patterson: I’ll just say, Mr. Chair, that we have taken a very limited view of the definition of “substances” in CEPA, which I think is actually very broad and could include this new generation of harmful impacts on our biodiversity. I may look for the opportunity, then, to amend the definition of “substances,” but I’m a little disappointed that you have, in effect, ruled my amendment out of order, Mr. Chair. I won’t go any further than that. Thank you.

The Chair: Well, as you know, we had a vote earlier relative to your other amendment, and the concept of that vote applies to the same nature for this one.

Senator Patterson: Yes, but I’m just proposing that it be something that could be studied.

The Chair: We can have a vote by committee if that makes your day.

Senator Patterson: It would make me feel better, yes.

Senator Galvez: In Bill S-5, a (k.1) has been added, and it says “activities that may contribute to pollution.” Senator Patterson is suggesting, I think, radiofrequency electromagnetic radiation falls under that, but it’s not an activity; the radiation is not an activity.

I would like to ask the officials what they have in mind when they talk about activities, because the next three amendments by Senator McCallum add hydraulic fracturing, which is an activity; tailing ponds, which are not an activity, but a type of infrastructure; and blue-green algae toxin, which is not an activity, but maybe it’s the pollution of lakes that is the activity.

The Chair: We can ask Mr. Moffet or Health Canada.

Mr. Moffet: Well, one of the challenges we have with this amendment, as with many amendments, is that we have to refer back to the text of CEPA itself.

So section 46 provides broad authority to ministers to require submission of information. We use section 46 for various purposes, primarily, though, for generating the information that we report in the National Pollutant Release Inventory and in the national greenhouse gas inventory.

However, the authority is broader than we need for those two initiatives. It covers authority to gather information on a range of pollutant-related issues and covers all of the various authorities in the act: toxic substances, nutrients, intergovernmental water and air pollution, et cetera.

What we are trying to do here by adding (k.1) is to go beyond information on substances and gather information about activities themselves that may, when the activity is carried out, create pollution. Then we can have better information to devise risk-management approaches focused on preventing pollution as opposed to just identifying it and managing it once it occurs.

The Chair: Thank you. Senator Patterson, if you insist, we can have a vote here. But to be coherent, if you don’t insist —

Senator Patterson: Can I ask Mr. Moffet a follow-up question?

The Chair: Sure, go ahead.

Senator Patterson: Thank you, Mr. Moffet. You talked about the information gathering on a wide range of pollution-related issues, and how (k.1) seeks to go beyond information on substances to include activities.

I’m concerned about the proliferation of cellphone towers — the building of cellphone towers on every block and the implications on human and animal life and biodiversity.

Would you say that the proliferation of cellphone-related radiofrequency electromagnetic radiation through activities like 5G wireless systems — and maybe it will be 6G next — would be an activity that could be included in the scope of section 46 with the government’s proposed amendment in that area? Would it include such activities as I’ve described leading to radiofrequency electromagnetic radiation?

Mr. Moffet: Unfortunately, senator, I don’t think so. I should have continued my explanation when I said that the idea of (k.1) is to focus on activities related to pollution, and by that I meant activities that contribute to the kind of pollution that releases substances that are harmful to the environment or human health.

So the concept of pollution here is still restricted to pollution related to substances as defined in the act, which covers a variety of things but does not include energy, as we previously discussed.

The Chair: Okay. Thank you. Are there any other questions or comments? If that’s the case, we’ll proceed.

Senator McCallum: These are new, and these have come from different — I will use the term “Indian,” because I think it’s very important. That’s how we are defined under the Indian Act: Indians and Indian lands. I wanted to start by saying that every single inch — as Senator Arnot told us — of Manitoba, Saskatchewan and Alberta are covered by treaties. I wanted to start by saying that.

What was the first one?

The Chair: It’s 19 first, then 19a and then 19b.

Senator McCallum: Okay, so this is about hydraulic fracking, so I move:

That Bill S-5 be amended in clause 9, on page 5, by adding the following after line 19:

“(k.2) hydraulic fracturing;”.

That Bill S-5 be amended in clause 9, on page 5, by adding the following after line 19:

“(k.2) tailings ponds;”.

That Bill S-5 be amended in clause 9, on page 5, by adding the following after line 19:

“(k.2) blue-green algae toxins;”.

This came to me with a woman whose son has sinus cancer from fracking. He worked in the fracking industry.

The Canadian Medical Association Journal has an article entitled “Fracking tied to cancer-causing chemicals.” On their short list, they have identified 17 water pollutants, 11 air pollutants and 20 unique compounds that had evidence of increased risk of leukemia or lymphoma. They argue that:

. . . there’s now enough evidence that fracking operations have the potential to increase the risk of childhood leukemia that epidemiological studies should be started alongside exposure measures. “Other cancers may take decades to develop but this is a disease that really deserves attention now because the age of onset is usually two to five years.”

The provinces of Quebec, Newfoundland and Labrador and Nova Scotia have imposed moratoriums on fracking until more evidence about its effects on the environment and health is available.

There was an open letter from Canadian physicians to Prime Minister Trudeau about their concerns about fracking, and there have been other studies done that have confirmed that there is toxicity.

The Chair: When I read the three amendments you’ve circulated to all of us, it’s a repetition. One of them is hydraulic fracking. The other one is tailing ponds, and then blue-green algae toxins. Given your position, we have to ask you to choose one of the three.

Senator McCallum: No, they are all separate amendments. That’s why I did them separately. I want to add all of them. It was not to pick one.

The Chair: Then it should have been in one amendment.

Senator McCallum: No, because if you voted for one, then — if they vote against it, all of them go.

Oh, it should have been — yes, it should have been. I didn’t see that. It should be (k.2), (k.3) and (k.4). Sorry. Yes, I didn’t notice that. I had written it as all separate numbers.

Ms. Cardinal: Yes, I forgot about that. At the end of clause-by-clause, we’ll have a motion that allows the Law Clerk’s Office to renumber things. So she can do all three separate amendments and then we will fix it at the end so that it’s (k.2) and so on.

Senator McCallum: So we will stand this?

Ms. Cardinal: No, you are good.

Senator McCallum: And that is why I have brought it forward.

The Chair: We will keep on listening, but we are running out of time.

Senator McCallum: So do you want to vote on it now, then?

The Chair: Yes, if you are ready to have the debate.

Senator Galvez: Chair, can I contribute to the discussion?

Senator McCallum, I do not think anyone can deny that these three are sources of pollution, for sure. I can give you a multitude of examples of blue-green algae toxins where cyanobacteria, which is very toxic, is found. Actually, there is even a controversy, because according to Health Canada, a beach can be swimmable if it doesn’t contain E. coli, but it can contain blue-green algae. So there is a conflict between the environment and the health that don’t define these things appropriately. So this one is for sure.

Then, in tailings ponds, with all the hydrocarbons that are there, of course there is pollution, as there is in hydraulic fracturing, with all the solvents it involves and the volatile petroleum compounds.

My question is again to the officials present: Will these three be considered in (k.1) activities that may contribute to pollution?

Senator McCallum: Could I say something to that? When you look at the activity that creates pollution and that these are the results of it, it is activity that has led to it. It isn’t just occurring there. It is activity by the government, by hydro and by resource extraction with the hydraulic fracturing.

But tailings ponds is an activity because they are being stored there. What he said was that it is the release of substances that are toxic. So you have the companies release the toxins on the land. They lie on the land. If there wasn’t an activity, they wouldn’t be collected there.

The Chair: Mr. Moffet, do you want to clarify this issue?

Mr. Moffet: I can give you a preliminary response, and that is that I think the notion of activities — so I think the question was whether the term “activities” covers these three amendments.

I think the sense from our team, looking at these amendments quickly, is that activities would cover tailings ponds and fracking, which both may contribute to the creation or release of toxic substances; and if they did, then we would also have authority in the act to regulate those substances.

I don’t think that that is the case for blue-green algae, which is not an activity. It’s a naturally occurring substance that may be caused by various activities and substances, many of which are already addressed in CEPA, including nutrients. There’s an entire part of CEPA that addresses the regulation of nutrients.

But in terms of section 46 and the authority to gather information, that would not be covered by the government’s amendment of (k.1) regarding activities that may contribute to pollution. I hope that’s clear.

Senator Kutcher: I’m not as much of a scientist as Senator Galvez in this area — not even close — but hydraulic fracturing and tailings ponds seems to me to be the perfect fit. I don’t know about blue-green algae because it’s a naturally occurring substance. This says “toxins,” so that’s a product of the algae, not the algae themselves. So I just don’t have enough knowledge. We have to have the officials help us on that.

Senator McCallum: This area of the blue-green algae has been studied by the Tataskweyak Cree Nation without the help of Health Canada. They have been appealing to Health Canada for help.

If you feel this is outside the scope, these people are living with toxins in their water. That’s what it is. Health Canada has said that it is — okay, no. So it’s affecting the people, and it includes liver, kidney, nerve and muscle damage, and Health Canada acknowledges that now.

The blue-green algae that is there comes from the sewage that comes from the south and it flows to Split Lake in the Tataskweyak Cree Nation. They call that the toilet bowl of the North. So this is the activity of that, plus tailings from the mine in Thompson.

The Chair: I propose that we vote on all three individually. Can we proceed with that?

Senator Patterson: Mr. Chair, I had a follow-up question to Mr. Moffet on the answer he just gave, if I may.

Mr. Moffet, you said that if tailings ponds and fracking were added to the list of activities, we would have the authority to regulate under the act.

Are these not clearly areas of provincial jurisdiction under the Constitution? Senator McCallum had said that some provinces have actually banned fracking.

Are you suggesting that this amendment would give the federal government authority to regulate in matters that are normally considered under our Constitution to be within provincial authority?

Mr. Moffet: Senator, that’s an excellent question, and I apologize if I misled you or the committee. What I intended to say was that the government’s amendment that refers to activities that may contribute to pollution covers information gathering on activities such as fracking and the construction and maintenance of tailings ponds.

So the committee could add, for example, activities that may contribute to pollution, such as, or including, tailings ponds and fracking, just to be clear. But what I’m reassuring the committee is that the government’s amendment already covers that information-gathering authority.

I then said that if those activities result in the release of a substance that is defined as toxic in CEPA, then CEPA would provide authority to regulate those releases. That’s different than regulating simply based on the authority in section 46, and that’s different than regulating the entire activity. We already have the authority to regulate the release of toxic substances from a wide range of activities in Canada.

The Chair: Thank you.

Senator Patterson: Thanks for that clarification.

The Chair: I suggest we move to a vote on the three —

Senator McCallum: The federal government is responsible for Indians and land reserved for Indians. That’s why I brought this forward, because remember that we are talking about the Tataskweyak Cree Nation and south —

The Chair: I will read each of the three motions that Senator McCallum presented earlier.

It is moved by the Honourable Senator McCallum:

That Bill S-5 be amended in clause 9, on page 5, by adding the following after line 19:

“(k.2) hydraulic fracturing;”.

Is it your pleasure, honourable senators, to adopt the motion in amendment? Raise your hands if you are in favour; those against, thumbs down. So moved.

It is moved by the Honourable Senator McCallum:

That Bill S-5 be amended in clause 9, on page 5, by adding the following after line 19:

“(k.2) tailings ponds;”.

Is it your pleasure, honourable senators, to adopt the motion in amendment? All in favour, raise your hands; those against, thumbs down. So moved.

And it is moved by the Honourable Senator McCallum:

That Bill S-5 be amended in clause 9, on page 5, by adding the following after line 19:

“(k.2) blue-green algae toxins;”.

Is it your pleasure, honourable senators, to adopt the motion in amendment? Raise your hands, those in favour; those against, thumbs down. So it is defeated.

Shall clause 9, as amended, carry? All in favour.

Agreed.

Senator Patterson: No. Point of order.

Mr. Chair, I made an amendment that was not voted upon. I did not withdraw the amendment. It was not voted on. My point of order is that there should be a vote on any amendment made by any senator. Senator McCallum’s three amendments to clause 9 were voted on; mine was not.

The Chair: It is moved by the Honourable Senator Patterson:

That Bill S-5 be amended in clause 9, on page 5, by adding the following after line 19:

“(k.2) radiofrequency electromagnetic radiation;”.

All those in favour, please raise your hands; all those against, thumbs down. So refused; defeated.

Shall clause 9 as amended carry? Carried.

That finishes the session. We will continue tomorrow morning.

Senator Sorensen: If we do not finish tomorrow, there’s speculation as to when the next meeting will be, because we’re being asked to sub in for other committees, and we can’t commit because we don’t know when we’re sitting —

The Chair: I think the answer depends on Senator Kutcher. If he terminates all of his amendments, we may be here on Saturday and Sunday. Who knows?

We will have a chance to discuss it, Senator McCallum. On that issue, we will discuss it at the very end. That is where we have a place for it on the agenda. Thank you very much; until tomorrow morning.

(The committee adjourned.)